Seanad debates

Tuesday, 29 November 2022

Assisted Decision-Making (Capacity) (Amendment) Bill 2022: Report Stage

 

1:00 pm

Photo of Frances BlackFrances Black (Independent) | Oireachtas source

This amendment seeks to place a human rights-based and UNCRPD-compliant definition of "legal capacity" in the legislation. I was disappointed that the Minister refused to accept this amendment on Committee Stage, stating that the Government's position was that the operation of the functional model was uniquely qualified by an explicit respect for person's will and preference throughout the operation of the test. I do not know if there is a bit of a misunderstanding on this. The inclusion of a functional test is fundamentally incompatible with the universal recognition of the legal capacity of a person and the centrality of their will and preferences as required by Article 12 of the UNCRPD. The Minister received a letter from the vice chair of the UN Committee on the Rights of Persons with Disabilities, Jonas Ruskus, urging him to amend this Bill to remove the functional test and clarifying that Ireland will be in violation of Article 12 of the UNCRPD if he does not do so. Ireland will have to answer to the UN committee when it meets in Geneva to consider our first state report. Why is the Minister unwilling to reform this legislation to meet our human rights obligations?

I was also disappointed by the objection to this amendment on Committee Stage. The Minister believed it provided for decision-making assistants to guide the decision of a relevant person. This could also be a bit of a misunderstanding as the proposed amendment imposes no such requirement. It instead obliges decision-making supports to be guided by the best interpretation of the relevant person's will or preferences. The focus is therefore always on the will and preference of the relevant person and in no way guided by the decision-making supporter. The same provision requires that supporters provide a reasonable account of how this interpretation was arrived at, confirming my point. This amendment would help to bring the Bill into line with the spirit of the UNCRPD. I hope the Minister will consider accepting it.

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